OECD Recommendation concerning International Co-operation on Competition Investigations and Proceedings

On 16 September 2014, the OECD Council adopted a Recommendation that calls for governments to foster their competition laws and practices so as to promote further international co-operation among competition authorities and to reduce the harm arising from anticompetitive practices and from mergers with anticompetitive effects.

The 2014 Recommendation concerning International Co-operation on Competition Investigations and Proceedings replaces the former 1995 OECD Council Recommendation and is a step forward in the fight against anticompetitive practices.

Rationale for the Recommendation

International co-operation between competition authorities has been at the core of the OECD agenda for many years. A first recommendation adopted in 1967 and a series of revisions had led to a 1995 OECD Recommendation on International Co-operation which has greatly contributed to shaping the current framework for international enforcement co-operation.

However, trends in globalisation, technological advances and the increasing number of companies conducting business worldwide have brought international enforcement co-operation back on the policy agenda.

In 2013, a survey carried out by the OECD and the International Competition Network showed that very few jurisdictions co-operated with other jurisdictions in competition law enforcement (especially due to legal and/or practical limitations to co-operation). Given that there are over 120 countries with competition laws and effective authorities enforcing them, multi-jurisdictional cases tend to keep growing and competition authorities increasingly face situations where the effective enforcement of domestic competition laws depends on co-operation with other enforcers.

Effective and efficient co-operation among authorities has become thus key to achieving competition enforcement to the benefit of consumers, businesses and taxpayers in general. OECD Governments consider the 2014 Recommendation as an essential instrument to help OECD and non-OECD countries foster enforcement co-operation with other jurisdictions and deter anticompetitive practices and mergers with possible anticompetitive effects.

The Recommendation applies to OECD member countries but other economies worldwide are welcome to associate themselves to it. The Secretariat is strongly committed to support OECD and non-OECD governments with the implementation of the Recommendation.

A number of non-OECD economies have already formally expressed the intention to adhere to the Recommendation. We invite other non-OECD economies interested in doing so to contact the OECD Secretariat at Antonio.Capobianco@oecd.org.

Innovative solutions for international co-operation

The 2014 Recommendation contains two sections that offer enforcers new and particularly innovative solutions:

A section calling for the adoption of national provisions that allow competition agencies to exchange confidential information without the need of seeking prior consent from the source of the information (so called “information gateways”).

Another, calling for enhanced co-operation in the form of investigative assistance, including the possibility to execute dawn-raids (inspections of premises), requests of information, witness testimonies, etc. on behalf of another agency.

Other sections in the Recommendation address the following issues:

Commitment to effective co-operation – It is important to minimise the impact of legislation that might restrict co-operation between competition authorities (such as legislation prohibiting domestic enterprises from co-operating in a proceeding conducted by other competition authorities).

Notifications of investigations - Technological advances and progress in transparency of competition authorities’ activities required strengthened mechanisms of notifications and more flexible means, such as notification by email or by other electronic tools.

Co-ordination of investigations - Parallel investigations against the same or related anticompetitive practice/merger demand that authorities co-ordinate their investigations or proceedings, for example, by aligning the timetables of the different investigations and discussing the competition authorities’ respective analyses as well as the design/ implementation of competition remedies.